December 8, 2010

Kentucky Basketball: The Possible Form Of The Enes Kanter Appeal

Enes Kanter has alternatively become a rallying cry and a cautionary tale. "Free Enes"is on the lips of almost every Kentucky fan in America, while at the same time, foreign players considering the possibility of playing for American NCAA-controlled universities must be thinking that this avenue is being forever closed, or at best very tightly restricted, before their very eyes.

The Case For Enes Kanter's Eligibility

This has been discussed at length in comment threads, but these diverse opinions need to be tied together into one coherent whole. That's what we'll attempt to do here.

The biggest and best argument for Enes Kanter's reinstatement has always been that the NCAA has previously allowed athletes who accepted money from agents, shoe companies, and other third parties in return for playing basketball to repay that money and accept a game penalty. These decisions have been almost universally based on the idea that it was never the student athlete's intent to "professionalize" himself.

This is the first, and most important prong in an eligibility restoration debate -- were the actions by the player an "intent to professionalize?" It is hard to know the exact reasoning behind the decision by the NCAA Student-Athlete Reinstatement staff to declare Kanter permanently ineligible, because they didn't release their reasoning, only their conclusion.

The NCAA Student-Athlete Reinstatement staff's conclusion read thus:

"Enes took advantage of an opportunity to play at the highest level available to him, but the consequences of receiving payments above his actual expenses is not compatible with the collegiate model of sports that our members have developed," said Kevin Lennon, NCAA vice president of academic and membership affairs.

So does this mean that Kanter flunked the test of "intent to professionalize?" On what basis? Was it that he took too much money, or more the fact of where the money came from, or both? We don't really know, so that's why a discussion of this case is so very difficult other than in the abstract. We do not know exactly what one thing, or combination of things, made the committee reach its conclusion, or what particular test Kanter flunked that Renardo Sidney and Josh Selby passed.

Regardless, the appeal to the NCAA Student-Athlete Reinstatement Committee will be based on the following arguments, no matter what:

Kanter did not intend to professionalize himself. He could not have signed a contract due to FIBA age requirements for most of his tenure with Fenerbahçe Ülker, and when he was offered a contract to play, apparently turned it down.

Kanter's parents applied any moneys in excess of expenses to young Enes' education, or sequestered it in a separate account for appropriate disposition according to their perception of NCAA rules.

The money Kanter took in excess benefits was comparatively trivial, especially considering most of it was used for education, a defined exception in the bylaws, even if the execution was flawed. In other words, there was an intent to educate, not to professionalize, and neither Enes nor his family used that money for any other purpose.

In addition there is the news that Kentucky will try to introduce new evidenceinto the Kanter matter. The new information first has to go back to the reinstatement staff, and if their new ruling is unfavorable, on to the reinstatement committee. Regarding this new information, we might anticipate these additional arguments, based on reports we have seen:

Young Kanter, due to his status as a minor, was not aware that the money he received was in excess of "actual and necessary expenses." The logic of this is that his family was handling the finances, and it is rational to think that Enes would not be aware of how much money was needed for actual and necessary expenses since he wasn't paying the bills. In other words, this is a partial Cam Newton scenario.

As anecdotal evidence of how this might work, I recall in my youth having a paper route, the proceeds of which were to be applied to my college education. I never had any idea how much money I made, because it was handled 100% by my parents.

The fundamental basis of the Newton ruling was ignorance on the part of Cam, and just as importantly, Auburn, about the activities of Cam's father, Cecil Newton. If Cam had known and did not alert the NCAA to his father's activities (a tall order, no doubt), or if Auburn had been aware of his activities and not reported them, he would have been declared ineligible.

Kanter's situation is not exactly analogous, but there is a similarity in terms of intent. If young Kanter did not really know how much money he was receiving as far as necessary and actual expenses were concerned, he could have reasonably believed that he and his family were acting fully within the NCAA bylaws. This would seem to mitigate any inappropriate actions by his parents, just as it did in the Newton case, especially since Kanter's parents were apparently acting guilelessly.

In addition, the NCAA takes into consideration knowledge of the NCAA legislation at the time of the violation. It seems very easy to argue that the Kanter's understanding of the bylaws would be far less than those of the parents of Cam Newton, Renardo Sidney or Josh Selby simply due to the fact that those worthies grew up in the AAU and High School ranks, where what is allowed and not allowed is force-fed to prospects from an early age.

There is no substantive difference between earning money in the United States as an amateur and earning money in Europe as an amateur. It seems that the staff decision may have been at least partially based on the fact that the source of income was a professional team in the sport that Kanter was trying to play in the U.S. as an amateur. Money is money, and as far as rendering a decision on amateurism is concerned, drawing a crooked line between a professional team and third parties with direct ties to professional teams could be said to be a distinction without a difference.

It's important to note that I have no idea if all this is right or not vis-a-vis UK's intentions. It is also important to note that there are defensible counter-arguments to every single one of these, no matter how convincing they may sound. It is possible that the amount of money in question is the primary concern, and if that is so, there really isn't much to be done to overcome that perception.

$33,000 may not sound like that much, but compared to Sidney and Selby, it is several orders of magnitudetimes greater. Yes, I know all about the $20k that the Kanters spent on education, but since that was done outside the rules, it is easy to see that the committee may not be willing to just forget about that fact.

Unfortunately, as Eric Crawford of the Courier-Journal wrote recently, it is hard to know what ball to keep our eyes on. We really don't know the rationale of the reinstatement staff, and what specific facts they used to differentiate the Kanter case from other cases like Sidney and Selby, among many others. Hopefully, UK has a much better idea than we do, because in the end, if the Kanters and UK cannot resolve those concerns via prior precedent or new information, the Committee on Reinstatement is likely to reach the same conclusion the staff did, which is permanent ineligibility.